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2021 DIGILAW 393 (TS)

P. Ranga Reddy (Died) Per L. Rs. , Hyderabad, K. Kusuma Latha v. P. Snehalatha Reddy, W/o late Umakanth Reddy

2021-12-07

A.VENKATESHWARA REDDY

body2021
ORDER: The revision petitioner/2nd plaintiff has filed this Civil Revision Petition under Article 227 of the Constitution of India assailing the order dated 04.02.2020 in IA No.169 of 2020 in OS No.377 of 2013 passed by the III Additional Chief Judge, City Civil Court, Hyderabad. 2. The petitioners/plaintiffs have filed IA No.169 of 2020 under Order XVIII, Rule-1 CPC to direct the respondent/defendant to commence the trial in OS No.19 of 2017. The learned III Additional Chief Judge, City Civil Court, Hyderabad, after studied examination of the rival contentions opined that the petitioners cannot take the ground of proceeding the case by the defendants by commencing the trial, leading their evidence, since the suit filed by them is for recovery of possession and trial already commenced. Accordingly, directed the petitioners/plaintiffs to proceed with the trial in OS No.377 of 2013 till they discharged their initial burden cast upon them u/s.101 of the Indian Evidence Act in proving their case in OS No.377 of 2013. Accordingly, the petition was partly allowed. 3. Being aggrieved by the said order, one of the plaintiffs i.e., plaintiff No.2, has filed the present civil revision petition on the following grounds: i) That a direction of the Court below that the plaintiffs in OS No.377 of 2013 shall proceed with the trial, to put a rider on the plaintiffs to proceed with the said suit is erroneous, contrary to law, unjust and unsustainable. ii) The Court below has acted illegally with material irregularities. The Court has discussed about the burden of proof under Sections 101 and 102 of the Indian Evidence Act, which is erroneous. iii) The Court below has failed to see that it is settled law that the burden of proving the Agreement of Sale rests on them who substantially asserts the affirmative issues and not the party who denies it. 4. Be that as it may, the plaintiffs have filed the original suit OS No.377 of 2013 for recovery of possession and perpetual injunction in respect of the suit schedule property. The defendants in OS No.377 of 2013 along with A. Akhila filed OS No.19 of 2017 against the plaintiffs herein for specific performance of agreement of sale. 4. Be that as it may, the plaintiffs have filed the original suit OS No.377 of 2013 for recovery of possession and perpetual injunction in respect of the suit schedule property. The defendants in OS No.377 of 2013 along with A. Akhila filed OS No.19 of 2017 against the plaintiffs herein for specific performance of agreement of sale. Pursuant to the orders of this Court in CRP No.6563 of 2018, suit in OS No.19 of 2017 has been clubbed with OS No.377 of 2013, which is a comprehensive suit for recovery of possession and injunction. Since OS No.19 of 2017 is clubbed with OS No.377 of 2013 as per the orders in CRP No.6563 of 2018, it is for the plaintiffs in OS No.377 of 2013 to lead evidence. But, the plaintiffs have filed the application under Order-XVIII, Rule-1 CPC seeking a direction to the respondents/defendants to commence evidence in OS No.19 of 2017. 5. As per the Order-XVIII, Rule-1 of CPC, the right to begin or the privilege of opening of the case will be determined by the rules of evidence. The general rule is that the party on whom the burden of proof lies should begin. The plaintiff has right to begin unless the defendant admitted all the material allegations in the plaint. When the defendant admitted some of the plaint averments then the defendant may be required to lead evidence first. But, in the instant case, the plaintiff and defendants have filed separate suits in respect of same property and both the suits were clubbed in view of directions of this Court as the plaintiff’s suit is earlier in point of time and that the defendant’s suit for specific performance is clubbed with the plaintiff’s suit. Therefore, I do not find any irregularity in the order impugned of the trial Court directing the plaintiffs in OS No.377 of 2013 to lead evidence first and it does not warrant interference by this Court. However, since there are several issues the burden of proving some of which lies on either of the party the plaintiffs may at their option avail the benefit of Order-XVIII, Rule-3 CPC. 6. In the result, the Civil Revision Petition is dismissed. However, the parties shall bear their respective costs. 7. Miscellaneous applications, if any pending in this revision petition shall stand closed.